Court Denies Sanctions for Destruction of Certain Electronic Evidence

Plaintiff sued for sexual harassment as a putative class representative. During the course of discovery, the parties agreed on a preservation order; however, prior to that time, the defendant had continued its normal document retention and destruction policies, had not informed its director of network services that any material should be retained, and never informed its employees about the need to retain documents relevant to the lawsuit (although it had issued a notice to employees to save documents specifically related to the plaintiff, which the court found too narrow in scope). Backup tapes were recycled and former employees’ hard drives were not saved, including that of the plaintiff’s former supervisor.

Plaintiff sought the entry of default, or an adverse jury instruction at trial, or an order barring defendant from claiming that its male employees did not circulate pornographic, lewd and inappropriate email to members of the putative class. Plaintiff also asked that defendant pay the costs for plaintiff’s forensic data recovery expert to retrieve email from the existing backup tapes.

The court found that the defendant had a duty to preserve the evidence that was destroyed, since it was on notice that plaintiff would seek electronic evidence and knew the identities of the alleged harassers. “At the very least, CBRE should have initially retained all relevant documents relating to the ten alleged harassers.” 2003 WL 22439865, at *5. The defendant also should have retained documents from the particular office where the plaintiff worked and the other offices named in the complaint, and not just documents that “pertain to Amy Wiginton.” Id. The Court further stated:

Additionally, CBRE had a duty to preserve the computer hard drives, e-mail accounts, and internet records of anyone who left the company who had been accused (formally or informally) of sexual harassment or misconduct. Or, if this were cost prohibitive, it could have searched the computer for sexually inappropriate or otherwise offensive material before destroying the other data it contained and reusing the computer.

Id.

The court rejected the request for default judgment, finding it too harsh. With respect to the adverse inference instruction, the court found that the circumstances of the destruction indicated that the documents were destroyed in bad faith:

First, whether the documents were destroyed according to regular document retention procedures has been used as a factor to determine the reason for the destruction of the documents. . . . However, once a party is on notice that specific relevant documents are scheduled to be destroyed according to a routine document retention policy, and the party does not act to prevent that destruction, at some point it has crossed the line between negligence and bad faith. At that point, we must find that the reason for the destruction becomes because the party knew that relevant evidence was contained in the documents and wanted to hide the adverse information, rather than because the documents were scheduled to be destroyed. . . . [CBRE’s] failure to change its normal document retention policy, knowing that relevant documents would be destroyed if it did not act to preserve these documents, is evidence of bad faith.

Next, as discussed, CBRE did not have the duty to preserve every single piece of electronic data in the entire company. But its failure to make an adequate search for relevant documents before destroying non-relevant documents is further evidence of its bad faith.

CBRE knew that electronic evidence would be requested at least as early as January 2002 when Wiginton’s EEOC charge was filed. Later, the class action complaint was filed, then Plaintiff sent the September 27 Letter to Defendant, and finally, document requests were sent to CBRE. And yet CBRE claims that its failure to search for any documents, such as e-mails, is innocent because such a search would have been too burdensome and would not have revealed any relevant documents. Perhaps if CBRE had attempted to perform such a search and had evidence that it was unsuccessful we would find its assertion credible. But its complete failure to perform any search rises above the level of mere negligence, and this willful blindness in the context of the facts surrounding the destruction of the documents, leads us to find that the documents were destroyed in bad faith.

Id. at *7 (citations and footnote omitted). However, having found bad faith, the magistrate recommended that plaintiff’s motion be denied without prejudice:

In this case, unlike most cases in which documents have been destroyed, there is a way to determine the effect that CBRE’s actions have had on Plaintiff’s case. . . . While the entire scope and extent of the lost documents is not known, the backup tapes for the three months of June, August and September 2002 that have been produced by CBRE may give some evidence into what was destroyed. For this reason, the Court recommends that Plaintiff’s motion for sanctions be denied without prejudice. If Plaintiff’s expert is able to discover relevant documents on the backup tapes then Plaintiff should be allowed to renew its motion for appropriate sanctions based on the destroyed evidence.

Id. at *8. Although the court did not organize its discussion by setting out the elements that are required for an adverse inference instruction, it is apparent that there was no showing that the evidence was relevant and favorable to the plaintiff’s case. Consequently, the court’s order gives plaintiff the opportunity to restore the backup tapes and attempt to locate evidence bearing upon the missing element.

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